carnegie

gatorguy said:

lmasanti said:

With all due respect to the US Judiciary system…

Epic vs. Apple was decided by a judge.
Epic vs. Google ws decided by a jury.

The jury makes its decision based in how well the parts ‘expose’ the facts.

At least for me… that is quite different —but legally correct— form of judgement.

What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge.  

Before I get into some of the nuance of how the respective cases developed, I'd say the simple answer to your question is... because in the Apple case Epic didn't want a jury trial and in the Google case Epic did, not initially but ultimately, want a jury trial.

Now, some of (but not all of) the nuance...

In Apple's case Epic didn't ask for a jury trial. And since it was only asking for equitable relief (e.g. an injunction preventing Apple from doing certain things) as opposed to legal relief (e.g. monetary damages), Apple wasn't entitled to a jury trial. Apple did make counterclaims on which it was entitled to (and asked for) a jury trial. But insisting on a jury would have meant two separate trials. So Apple ultimately agreed to one bench trial.

In Google's case Epic again didn't ask for a jury trial and again only asked for equitable relief. Google also made counterclaims on which it was entitled to (and asked for) a jury trial. But in that case something else happened, Epic's suit was consolidated with several other cases brought against Google with all the antitrust claims to be heard in a single trial. That effectively settled the issue of whether there would be a single jury trial, a single bench trial, or separate trials (one for Epic's antitrust claims and another for Google's counterclaims). Because the other plaintiffs had asked for legal (i.e. not just equitable) relief, those other plaintiffs and Google were entitled to a jury trial. Google was set to get what it wanted, a jury trial not just on its counterclaims but on all of the antitrust claims as well.

The cases remained on that track until Google eventually settled with all of the other (non-Epic) plaintiffs. By that point Epic and Google had switched positions; Epic wanted a jury trial and Google wanted a bench trial - perhaps, in part, because the judge had ordered that an adverse inference instruction be given to the jury in response to Google's deletion of chat records. Each side made its legal arguments and Epic (probably correctly) prevailed. Google didn't get to switch to a bench trial at the last minute.

So in the Apple case Epic got the bench trial it wanted and largely lost. Then in the Google case Epic didn't get the bench trial it initially wanted and largely won. Go figure.

There are a number of important differences between this case against Google and Epic's case against Apple, both when it comes to the accusations made and the trial results. But the most important difference is the nature of the relevant antitrust (product) markets which were found to exist in the different cases. In the Apple case the judge did not find a relevant antitrust market which was limited to a single brand (e.g. iOS app distribution). But in the Google case the jury did find relevant antitrust markets which were limited to a single brand (i.e., the "Android app distribution market" and "Android in-app billing services for digital goods and services transactions"). For both companies, when it comes to such antitrust accusations, that's the pivotal determination: Are any of the single-brand markets which they largely control (e.g., iOS app distribution or Android app distribution) in and of themselves relevant antitrust markets?

It will be interesting to see how that particular aspect of this jury's decision fares on appeal. Will the determinations of single-brand relevant antitrust (product) markets be upheld? Or will an appeals court find that such single-brand markets aren't, as a matter of law, supported by the facts of and evidence presented in this case? I could see the answer going either way, in large part because appeals courts haven't as-yet provided a great deal of guidance on when relevant antitrust markets can be limited to single brands - though, in fairness, the Ninth Circuit (where an initial appeal would be heard) has provided more guidance on that front than most (if not all) other circuits. It's also possible that the trial court itself (i.e. the district court judge) could find for Google that no such relevant market is supported - based on the evidence presented and as a matter of law - in response to a post-verdict motion from Google.

macxpress said:

carnegie said:

entropys said:

I always found this case strange, at least why Apple was involved at all. Broadcom made the chips, and should be responsible for ensuring patents were covered. Apple bought the broadcom chips, but was somehow supposed to know if Broadcom was violating patents and thus wa also violating the patents.

seems like a chasing the biggest pocket strategy

That's how patent law works. Making, selling, offering to sell, or importing a patented invention without authority is infringement, but so is using a patented invention without authority. So in theory you or I could be sued for using an iPhone which infringes a given patent if we use it in a way that infringes that patent - e.g., if we use the camera and something about its functioning infringes that patent.

They included Apple because they have billions of dollars and thats the only reason. If it were some small company they wouldn't even bother. They wouldn't get the money or the headlines with a small company. Everyone thinks they deserve some of Apple success (money). 

Sure. Apple's deeper pockets were likely a consideration. But Caltech likely also wanted to make the two-tier damages argument I referred to in the previous post. By including Apple they could argue for a device-level royalty rate from Apple. They wouldn't have been able to justify as high a rate if they had only sued Broadcom, because then they'd be arguing a chip-level royalty rate for all the units. So they hoped to accept a lower royalty rate for the chips Broadcom sold to others (in part because arguing a device level rate for those would have been less valuable because the devices they went into would tend to be sold at lower prices) while also getting a higher effective rate for the chips Broadcom sold to Apple.

Xed said:

carnegie said:

entropys said:

I always found this case strange, at least why Apple was involved at all. Broadcom made the chips, and should be responsible for ensuring patents were covered. Apple bought the broadcom chips, but was somehow supposed to know if Broadcom was violating patents and thus wa also violating the patents.

seems like a chasing the biggest pocket strategy

That's how patent law works. Making, selling, offering to sell, or importing a patented invention without authority is infringement, but so is using a patented invention without authority. So in theory you or I could be sued for using an iPhone which infringes a given patent if we use it in a way that infringes that patent - e.g., if we use the camera and something about its functioning infringes that patent.

But Apple is also more culpable to be found over 3x more liable financially than Broadcom?

And did Broadcom not have a single other customer than Apple for a the infringing WiFi chips?

I feel like there is some missing info since the beginning of this lawsuit.

That's one of the reasons the case was headed for a retrial.

The Federal Circuit vacated the infringement finding with regard to one of the three patents. That aspect of the decision doesn't seem to have been reported on as much and in some cases it's been inaccurately reported on. The Federal Circuit also vacated the damages award, and the reason for that goes to your point.

One method that's used to determine damages when there's been a finding of infringement is to try to figure out what likely would have resulted from a negotiation between the parties. Jurors (or a judge) hear(s) evidence (e.g. expert testimony or royalty rates agreed to by different parties) relating to such hypothetical negotiations. They use that to determine appropriate damages. In this case Caltech argued that it could negotiate separately with Apple and Broadcom and it could reach two separate agreements with very different royalty rates - $0.26 per unit for Broadcom and $1.40 per unit for Apple. It argued that it could give Broadcom a license which excluded all chips that it sold to Apple. Then it could give Apple a license for its Broadcom chips at a much higher royalty than Broadcom was paying for its non-Apple chips. The jury accepted that argument and used a much higher royalty rate to determine the damages against Apple than it used to determine those against Broadcom.

The Federal Circuit said no to that. It concluded that Caltech's evidence wasn't sufficient to support that two-tier damages approach. The Federal Circuit's reasoning likely meant that Caltech would have received a much smaller damages award against Apple in a retrial.

entropys said:

Interesting. But should it not be that it is Broadcom using the patent, not Apple? I guess it is like receiving stolen goods?

The due diligence on purchasing complex hardware must be excruciating. And of course favour big companies with the capacity to do so over the little guy.

It might be argued that both of them (as well as others) are using the patented invention. But more importantly, Apple is selling, offering to sell, and importing the patented invention. If the patented invention is incorporated in, e.g., an iPhone, then selling that iPhone means selling the patented invention.

As for the due diligence issue, it's very likely that Broadcom's contract with Apple provided some degree of indemnification for a situation like this. Indeed, the Federal Circuit's opinion and some things said in one of Apple and Broadcom's (somewhat redacted) briefs strongly suggests as much.